SCOVT affirms judgment as a matter of law for defendant driver in negligence case where there was no specific expert or other evidence of a causal link between driver’s alleged negligence and plaintiff jogger’s injury.

 Driscoll v. Wright Cut and Clean LLC, 2024 VT 24 [August 2, 2024]

 EATON, J. Plaintiff Frank Driscoll appeals a civil division order granting judgment as a matter of law on his negligence claim in favor of defendants Benjamin Wright and Wright Cut and Clean, LLC. Based on the evidence plaintiff presented at trial, defendants moved for judgment as a matter of law under Vermont Rule of Civil Procedure 50 at the close of plaintiff’s case. The court granted defendants’ motion. On appeal, plaintiff argues that the trial court erred in granting judgment as a matter of law. Because we determine plaintiff failed to produce sufficient evidence of causation, we conclude judgment as a matter of law was warranted. Accordingly, we affirm.

On July 18, 2019, plaintiff was running in a southerly direction on the left side of the road, facing into the flow of traffic. At the same time, defendant Benjamin Wright (driver), an employee of defendant Wright Cut and Clean, was driving a company truck also in a southerly but on the right side of the road. The truck was pulling a trailer.  As the truck approached plaintiff from behind, plaintiff looked behind him, and then moved about five feet to his left, toward the left edge of the road. As the truck passed plaintiff, driver looked in his side review mirror and saw plaintiff move get struck by the trailer. Plaintiff was unconscious when police arrived, and he has no memory of the accident.

The causation element of negligence requires sufficient evidence for a reasonable jury to conclude that, but for some negligent action by the defendant, the plaintiff would not have been harmed. Collins v.Thomas, 2007 VT 92, ¶ 8, 182 Vt. 250, 938 A.2d 1208. Evidence of injury alone is generally insufficient to show causation. Instead, the plaintiff must “rely on expert testimony” to demonstrate causation unless the circumstances are plain enough that “only common knowledge and experience are needed to comprehend it.” Sachs v. Downs Rachlin Martin PLLC, 2017 VT 100, ¶ 20, 206 Vt. 157, 179 A.3d 182 The absence of expert testimony or other viable evidence showing a causal link with the injury precludes a finding that the plaintiff sufficiently established that element. Bernasconi v. City of Barre, 2019 VT 6, ¶ 12, 209 Vt. 419, 206 A.3d 720; Lasek v. Vt. Vapor, Inc., 2014 VT 33, ¶ 15, 196 Vt. 243, 95 A.3d 447.

Plaintiff put on expert testimony at trial from a forensic engineer who opined that, at impact, “there wasn’t a four[-] foot safety gap or more between [plaintiff] and the trailer.”  The expert admitted, however, that there was “no physical evidence to establish where [plaintiff] was located” at any time before impact, and he was unable to provide conclusions on any causative factor leading up to the incident. The expert did not “know anything before [impact].” As such, he was unable to say whether there was in fact a “four[-]foot safety gap” between plaintiff and the trailer during the time leading up to impact or if the lack of such a gap, if any, was a causative factor in the collision. And he did not identify how, if at all, the truck’s speed or position or the driver’s alleged failure to better warn plaintiff provided any causal link between driver’s alleged negligence and plaintiff’s injury.

No other witness ever indicated what specific aspect of driver’s allegedly negligent actions caused plaintiff’s resulting harm. Because of plaintiff’s admitted inability to recall the incident, he could give no testimony on the subject. Absent specific evidence of causation, a jury would have to rely on mere speculation to determine what, if anything, was the causal link between driver’s actions prior to impact and plaintiff’s resulting injury. Absent the necessary evidence of causation, judgment as a matter of law must be affirmed. See Keegan v. Lemieux Sec. Servs., Inc., 2004 VT 97, ¶ 11, 177 Vt. 575, 861 A.2d 1135 (mem.) (recognizing that failure to prove any one element of negligence claim warrants judgment as matter of law).

Affirmed.

How Cited

SCOVT note: Where a loss of memory rendering the survivor of an accident incapable of testifying as to the accident is shown to be attributable to the  accident, it is generally presumed, in the absence of evidence to the contrary, that he exercised due care. Annot., Amnesiac as Entitled to Presumption of Due Care, 88 A.L.R.3d 622 § 3[a] (1978). Further, some jurisdictions reduce the burden of proof on the plaintiff when as a result of the incident the plaintiff has amnesia. In New York the theory is called the "Noseworthy" doctrine, after the case in which it was originally applied. Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744 (1948) See 8A Carmody-Wait 2d § 57:25 (Jury instructions addressing burden and degree of proof where action involves amnesia or death of victim).

Affirms summary judgment dismissing, for insufficient evidence of causation, wrongful death claim alleging plaintiff’s decedent would not have lost his balance and fallen from the back of defendant's pickup.but for defendant's negligence in driving an uninspected, defective vehicle,

Collins v. Thomas,, 2007 VT 92 [filed August 24, 2007]

DOOLEY, J. This is a wrongful death action on behalf of David Collins, who died tragically at age twenty after falling from the back of a pickup truck driven by his friend, defendant Bradford Garland. Plaintiffs, the estate of Collins, his parents, and sister, appeal an order of the superior court finding defendant not liable as a matter of law and granting him summary judgment. We affirm.

The truck was in poor repair and not legally inspected at the time of the incident. Specifically, it had only an expired New Hampshire inspection sticker and would not have passed inspection in Vermont due to insufficient tread on the tires, a defective front light, a crack in the windshield, a broken rear right shock absorber, and a faulty rear right brake cylinder.

Plaintiffs contend that but for defendant's negligence in driving an uninspected, defective vehicle, Collins would not have fallen to his death.

Liability for negligence, however, requires not only a breach of a duty of care but also evidence that defendant's unreasonable conduct caused the plaintiff's harm. See, e.g., Rivers v. State, 133 Vt. 11, 13, 328 A.2d 398, 399 (1974). Specifically, causation requires both "but-for" and proximate causation. See Wilkins v. Lamoille County Mental Health Servs., Inc., 2005 VT 121, ¶¶ 13-14, 179 Vt. 107, 889 A.2d 245. Thus, the plaintiff must first show that the harm would not have occurred "but for" the defendant's conduct such that the "tortious conduct [was] a necessary condition for the occurrence of the plaintiff's harm." Id. ¶ 13.

The plaintiff must also show that the defendant's negligence was "legally sufficient to result in liability," Black's Law Dictionary 234 (8th ed.2004) (defining proximate cause), such that "liability attaches for all the injurious consequences that flow [from the defendant's negligence] until diverted by the intervention of some efficient cause that makes the injury its own." Beatty v. Dunn, 103 Vt. 340, 343, 154 A. 770, 771 (1931) (quotations and citation omitted); see also Estate of Sumner v. Dep't of Soc. & Rehab. Servs., 162 Vt. 628, 629, 649 A.2d 1034, 1036 (1994) (mem.) ("Proximate cause is the law's method of keeping the scope of liability for a defendant's negligence from extending by ever-expanding causal links.").

Although proximate cause "ordinarily" is characterized as "a jury issue," it may be decided as a matter of law where "the proof is so clear that reasonable minds cannot draw different conclusions or where all reasonable minds would construe the facts and circumstances one way." Estate of Sumner, 162 Vt. at 629, 649 A.2d at 1036 (quotations and citation omitted).


[There is no sufficient] legal nexus between any defect in the truck and Collins' death. Collins' fatal fall from atop the toolbox could just as easily have occurred had the truck been in perfect repair and properly inspected. See Wilkins, 2005 VT 121, 1212*1212 ¶ 10, 179 Vt. 107, 889 A.2d 245 (explaining that a "defendant cannot be considered a cause of the plaintiff's injury if the injury would probably have occurred without" the defendant's unreasonable conduct (internal quotations omitted)). The fall was not within the natural flow of "injurious consequences" from the truck's defects; indeed, it occurred irrespective of the defects.

[A]lthough defendant did act negligently in operating a defective truck, defendant's conduct was not the proximate cause of plaintiff's injury, because there was no relationship between the defects and the accident.

SCOVT Note. Collins is increasingly cited for the proposition that a plaintiff alleging negligence must show “both ‘but-for’ and proximate causation.” Collins v. Thomas, 2007 VT 92, ¶ 8. See Palmer v. Furlan, 2019 VT 42; (affirming summary judgment dismissing legal malpractice claim for lack of evidence of causation); Ziniti v. New England Central Railroad, Inc.,2019 VT 9 (affirming partial summary judgment finding that car train collision was not caused by lack of a second warning sign).

Also causation “may be decided as a matter of law where the proof is so clear that reasonable minds cannot draw different conclusions or where all reasonable minds would construe the facts and circumstances one way.” Collins v. Thomas, 2007 VT 92, ¶ 8. See Bernasconi v. City of Barre, 2019 VT 6 ( affirming summary judgment dismissing premises liability claim for lack of evidence of causation.); Sachs v. Downs Rachlin Martin PLLC . 2017 VT 100 (reversing conclusion of no causation in legal malpractice case and holding causation was established as a matter of law.); Driscoll v. Wright Cut and Clean LLC, 2024 VT 49 (affirming judgment as a matter of law in negligence case for lack of specific evidence of causation)


Query -- Could Collins equally have been decided on the points that the plaintiff was not a member of the group of people whom the statute requiring vehicles inspections was intended to protect and that the risk of falling out of the vehicle was not within the purview of the statute? See Montague v. Hundred Acre Homestead, LLC, 2019 VT 16 (members of the public mot entitled to sue under statute and regulations with overarching purpose to protect residents of long-term-care facilities, not the public generally); see also Restatement (Second) of Torts § 286 (1965) (A duty may be established by safety statutes intended to protect the class of persons to which the plaintiff belongs against the particular hazard from which the harm resulted.)

SCOVT affirms summary judgment that there was no ineffective assistance of counsel, largely because alleged professional errors did not prejudice result.

In Re Burke, 2019 VT 28 [4/26/2019]

SKOGLUND, J. Petitioner James Burke sought post-conviction relief (PCR) alleging that his trial counsel, Attorney Daniel Maguire, provided ineffective assistance because of a conflict of interest. The PCR court denied petitioner’s motion for summary judgment and granted the State’s motion for summary judgment based on the court’s determination that Attorney Maguire did not provide ineffective counsel. Petitioner appeals and, for the reasons below, we affirm.

For PCR petitions based on ineffective counsel, the trial court outlined the Strickland two-part standard where the petitioner must show: (1) "by a preponderance of the evidence that counsel's performance fell below an objective standard of reasonableness informed by prevailing professional norms"; and (2) prejudice "by demonstrating a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different.

 Although an expert opined that Attorney Maguire's failure to hire a forensic toxicologist fell below the prevailing professional norm, there was no evidence to support the "prejudice" prong of the test with any degree of specificity because "the results of forensic toxicological evaluation remain highly speculative at best.. Similarly even if Attorney Maguire had more effectively counseled and prepared petitioner for the competency examinations, testimony, and PSI interview, there is no evidence that demonstrates or predicts how petitioner would have done anything different.

SCOVT affirms summary judgment dismissing legal malpractice claim for lack of evidence of causation.

Stephan Palmer, Sr. v. Mark Furlan and State of Vermont, 2019 VT 42 [filed 6/21/2019]

SKOGLUND, J. In this matter, the trial court entered summary judgment on behalf of appellee, Attorney Mark Furlan. Appellant, Stephan Palmer, Sr., appeals this order, arguing that the trial court erred when it determined that appellant’s claim failed as a matter of law on causation grounds. We conclude that summary judgment was appropriate and affirm

Attorney Furlan, an ad hoc public defender, was assigned to represent appellant in PCR proceedings. Appellant  alleged legal malpractice  because Attorney Furlan did not  more aggressively attempt to get the PCR court to act in an expedited manner  in approving the stipulation. that would have resulted in his immediate release

We conclude that, even if we were to accept for the sake of argument that appellant had established that Attorney Furlan was under a duty to ask the PCR court to expedite its consideration of the parties’ stipulation motion and that Attorney Furlan had breached said duty, appellant’s negligence claim fails as a matter of law because he has not established that Attorney Furlan’s alleged breach was the proximate cause of his alleged damages.

“[C]ausation requires both ‘but-for’ and proximate causation.” Collins v. Thomas, 2007 VT 92, ¶ 8, 182 Vt. 250, 938 A.2d 1208.

“But-for” causation “requires a showing that the harm would not have occurred ‘but for’ the defendant’s conduct such that the tortious conduct was a necessary condition for the occurrence of the plaintiff’s harm.” Ziniti, 2019 VT 9, ¶ 15 (quotation omitted).

Proximate cause, on the other hand, “requires a showing that the defendant’s negligence was legally sufficient to result in liability in that the injurious consequences flowed from the defendant’s conduct and were not interrupted by some intervening cause.” Id. (quotation omitted). And, “[a]lthough proximate cause ‘ordinarily’ is characterized as ‘a jury issue,’ it may be decided as a matter of law where ‘the proof is so clear that reasonable minds cannot draw different conclusions or where all reasonable minds would construe the facts and circumstances one way.’ ” Collins, 2007 VT 9, ¶ 8

Appellant has not proffered any evidence to establish that the PCR court would have, had Attorney Furlan proposed an expedited timeline due to the case’s circumstances, moved the hearing to an earlier date or rendered a speedier decision. The Appellant’s timeline is based in speculation and supposition, rather than specific facts/. it would require this Court, and the trial court, to speculate as to how judges make decisions and what decisions they reasonably would have made in these circumstances.Appellant’s argument simply leaves too much to speculation, which is something this Court and trial courts will not do when examining a motion for summary judgment.

EATON, J., concurring. I agree with the outcome reached by the majority affirming the dismissal of appellant Stephan Palmer, Sr.’s negligence claim against his criminal defense attorney because the claim rests upon speculation concerning the workings of the court in approving the proposed stipulation dismissing the post-conviction relief (PCR) claim. I write separately to point out additional concerns not addressed by the majority.

The PCR court did not have authority under 13 V.S.A. § 7042, or Rule 35, to reduce Palmer’s sentence based solely upon an untimely agreement of counsel to do so. The parties cannot confer authority upon the court to take an action simply through their agreement that the court has the power to do it..

I agree fully with the trial court here that execution of this stipulation by the PCR court was far more than a ministerial act. Thus, the argument that “any reasonably competent” judge would have advanced the case on the docket, and signed the stipulation, is even more speculative than the majority’s decision suggests

Finally, that a judge ultimately signed the stipulation when he did does not mean the stipulation would have been signed sooner, or at all, if it had been presented at an earlier time.

For these reasons, I concur in the outcome. I am authorized to state that Justice Carroll joins this concurrence.

SCOVT NOTE. In the PCRcontext a defendant claiming ineffective assistance of counsel need prove only a "reasonable probability" that but for counsel's unprofessional errors, the result of the proceeding would have been different.  Even so the Court has required evidence that demonstrates or predicts with specificity how the result would have been different. See In Re Burke, 2019 VT 28 (affirms summary judgment that there was no ineffective assistance of counsel, because alleged professional errors did not prejudice result).

SCOVT affirms denial of sudden emergency charge as harmless; and affirms partial summary judgment that car train collision was not caused by lack of second warning sign.

Matthew Ziniti v. New England Central Railroad, Inc., 2019 VT 9 [filed 2/8/2019]

ROBINSON, J. Plaintiff, who sued defendant railroad after he was seriously injured in a train-car collision, appeals the trial court’s partial summary judgment ruling and the ensuing jury verdict for defendant. Plaintiff argues that the trial court erred by: (1) granting defendant summary judgment precluding him from presenting evidence that defendant’s failure to place a crossbuck on the right side of the road at the site of the railroad crossing, or to take steps to ensure that an “advance warning” sign was present, caused or contributed to the collision; (2) denying a request for the jurors to view the crossing where the accident occurred; (3) denying his motion for a directed verdict on the railroad’s negligence on account of its violation of a safety statute relating to maintenance of the railroad’s right of way; and (4) denying his request for an instruction on the sudden emergency doctrine. We reject each of these arguments and, accordingly, affirm the judgment in favor of defendant.

A plaintiff alleging negligence must show “both ‘but-for’ and proximate causation.”  Collins v. Thomas, 2007 VT 92, ¶ 8, 182 Vt. 250, 938 A.2d 1208. Even assuming the absence of an advance warning sign or NECR’s failure to place a crossbuck on the right-hand side of the road amounted to a breach of the railroad’s duty of care,5 plaintiff could not prove defendant’s liability for negligence without evidence that the collision would not have occurred had either of the signs been in place. No reasonable jury could conclude that the absence of a crossbuck sign on the right caused or contributed to the collision. We reach this conclusion because a crossbuck sign on the right would not have provided approaching motorists with any warning of the crossing beyond the warning already provided earlier by the crossbuck sign on the left, which was clearly visible to motorists exiting the covered bridge.

Because the jury did not reach the question of plaintiff’s comparative negligence, plaintiff cannot show prejudice resulting from omission of the sudden emergency instruction, even assuming that it should have been given.

SCOVT affirms summary judgment for defendant in premises liability case for lack of evidence of notice of the hazard and, thus, of causation.

Jay Bernasconi v. City of Barre: Hope Cemetery, 2019 VT 6 [filed 1/25/2019]


ROBINSON, J. Plaintiff Jay Bernasconi appeals from the Superior Court’s grant of summary judgment to defendant City of Barre. Plaintiff fell into a hole and injured his knee while visiting family graves at Hope Cemetery, which the City owns. He contends that the City’s negligent maintenance of the Cemetery caused his injury. We conclude that even if the City was negligent in its inspection and maintenance practices, because plaintiff produced no evidence from which it is possible to determine how long the hole existed, he cannot show that the City would have found the hole if it followed different inspection and maintenance practices. Thus, he cannot establish that any breach of the City’s duty of care caused his injuries. We accordingly affirm

While causation is ordinarily a question for the jury, where a reasonable jury could not find that the defendant caused the plaintiff harm, a court must award judgment as a matter of law. See Collins v. Thomas, 2007 VT 92, ¶ 8 (“Although proximate cause ordinarily is characterized as a jury issue, it may be decided as a matter of law . . . where all reasonable minds would construe the facts and circumstances one way.” (quotations omitted)).

Even assuming that the City was not sufficiently diligent in inspecting for holes, without evidence as to how long the hole existed, plaintiff cannot prove that any lack of diligence by the City in failing to timely inspect for and repair holes caused his injury. In that respect, this case is analogous to Maciejko v. Lunenberg Fire District No. 2, 171 Vt. 542, 758 A.2d 811 (2000) (mem.) (without a finding as to how long an obstruction had been in a sewer main, the court erred in holding that the defendant’s lack of a maintenance plan or policy was the proximate cause of a backup.)

The facts that the workers did not always cover or report holes that they found, that City workers knew about the hole the day after plaintiff’s accident, and that one smiled and said “Call your lawyer” when plaintiff told them he had fallen in it the day before, are together not enough evidence for a reasonable jury to find that the City knew about the hole before the accident. That evidence supports only “conjecture, surmise or suspicion” that the City’s negligence caused plaintiff’s injury, and so is legally insufficient.

Because plaintiff has not offered sufficient evidence to establish causation, his claim for negligence fails.



SCOVT NOTE : As a general rule, "In order to impose liability for injury to an invitee by reason of the dangerous condition of the premises, the condition must have been known to the owner or have existed for such a time that it was his duty to know it." Forcier v. Grand Union Stores, Inc., 128 Vt. 389, 264 A.2d 796, 799 (1970), quoting Dooley v. Economy Store, Inc., 109 Vt. 138, 142, 194 A. 375, 377, and Wakefield v. Levin, 118 Vt. 392, 397, 110 A.2d 712.

Forcier, however, announced a "business practice" exception that relieves plaintiffs of having to prove that a retail business owner had notice of a foreseeably dangerous condition caused by self-service operations. See Randall v. K-Mart Corp., 150 F.3d 210, 213 (2d Cir.1998). Under Vermont law, the existence of a reasonably foreseeable dangerous condition created by self-service retail operations effectively notifies the store owner of the dangerous condition, making the critical issue whether the store owner responded reasonably to protect its customers from the danger. Malaney v. Hannaford Bros. Co. 2004 VT 76 ¶ 13, 861 A. 2d 1069. The modification of premises liability law in slip-and-fall cases involving self-service retail stores — as endorsed Forcier — was aimed at relieving plaintiffs of the nearly insurmountable burden of proving how long the dangerous condition had existed. Id. ¶ 18.


Query whether plaintiffs should be relieved of this impossible burden in situations other than the self-service operation?

Legal malpractice. Causation proved as a matter of law. Attorney's fees not recoverable.

Sachs v. Downs Rachlin Martin PLLC  . 2017 VT 100 [filed 10/20/2017]

SKOGLUND, J. After a bench trial, the trial court concluded that defendant attorney’s failure to adequately inform plaintiff of the risks of delay in filing a parentage action “negligently fell short of the standard of reasonably competent legal representation.”The trial court also determined that plaintiff failed to demonstrate direct causation or measurable damages as a result of defendant’s negligent advice. On appeal, plaintiff challenges the court’s legal conclusions and contends that the court’s factual findings established both causation and damages. We agree, and so reverse.

Following a bench trial, the court determined that plaintiff failed to prove the negligent representation was a “cause-in-fact” of plaintiff’s injury and that the evidence was “equivocal” as to whether plaintiff would have decided to file immediately had she been aware of the risk. It also found insufficient evidence for nonspeculative monetary damages.

Based on factual findings made by the trial court, we conclude that plaintiff met her burden to prove that, but for defendant’s negligence advice, she would not have delayed filing. To be clear, we do not hold that the trial court’s factual findings were clearly erroneous. We do not disagree with the sufficiency of the court’s factual findings in any respect. Rather, we conclude that those findings lead inescapably to the legal conclusion that plaintiff established causation by a preponderance of the evidence. Collins v. Thomas, 2007 VT 92, ¶ 8, 182 Vt. 250, 938 A.2d 1208 (2007) (noting causation “may be decided as a matter of law where the proof is so clear that reasonable minds cannot draw different conclusions or where all reasonable minds would construe the facts and circumstances one way”)

More importantly, the alternate theory of causation advanced by defendant and apparently adopted by the trial court is not the standard for determining causation-in-fact. The trial court concluded that “[p]laintiff has not demonstrated that she likely would have made any different decision, even if properly advised of the risks of losing support.” This was not a correct statement of the law. Plaintiff merely needed to prove by a preponderance of the evidence that but for defendant’s negligence, plaintiff would not have suffered harm. Id. That is a standard plaintiff satisfied here. We remand for the court to calculate the damages.

In addition to damages, plaintiff seeks attorney’s fees she spent pursuing her malpractice action against defendant. We conclude that the American Rule prevails in this case, and therefore, each party bears its own attorney’s fees.

Reversed and remanded for calculation of damages.

CARROLL, J., dissenting. I agree with the majority that the trial court did not use the correct legal standard for causation. However, the court applied a standard more deferential to plaintiff and the factual findings made by the trial court support the conclusion that plaintiff failed to prove by a preponderance of the evidence that she would have filed her parentage complaint sooner if she had been given accurate advice concerning child support.

When defendant informed plaintiff that there were important strategic advantages in remaining out of court for at least a year and that threats to contest custody are sometimes made as negotiating ploys to limit child support, plaintiff felt that this was a “terrifying prospect.” Plaintiff also testified that a delay in filing would allow her to “enjoy the time with [her] daughter and bond with her and have that time together without contentious litigation at the forefront of it all.” She described this as a “win/win” situation. The record supports a conclusion that plaintiff failed to demonstrate that “but for” the erroneous advice concerning child support, she would have filed her parentage complaint sooner. For this reason, I respectfully dissent. I am authorized to state that Judge Harris joins this dissent.

Torts. Causation. SCOVT reverses defendant’s verdict in low impact whiplash case because causation charge required jury to find the injury was reasonably foreseeable.

On reargument the Court's March 15, 2013 opinion which follows is withdrawn. The appeal is dismissed as untimely filed .Fagnant v. Foss, 2013 VT 16 (Robinson, J.) 

This case involves a low-impact, rear-end car collision. Plaintiff appeals from a jury verdict finding that defendant’s conceded breach of a duty of care, and the resulting auto accident, was not the proximate cause of any injuries and harm to plaintiff. We conclude that the trial court’s instruction concerning proximate cause improperly and prejudicially directed the jury to consider the foreseeability of plaintiff’s injuries, even though “duty” and “breach” had been established as a matter of law, and we reverse.

The court included the following paragraph at the end of the proximate cause instruction:

“The exact occurrence, or the precise injuries and damage which result need not have been actually anticipated; a person may be held liable for the results of her own negligent conduct if those consequences can be fairly regarded as normal incidents of the risk created by the circumstances. However, injury of the type or kind which did occur as a result of negligent conduct must have been not merely possible, but reasonably foreseeable.”

What makes this instruction problematic, is the court’s linkage of “foreseeability” to the concept of proximate cause, particularly where the defendant’s breach of a legal duty to plaintiff was established as a matter of law and the only issues left to the jury were causation and damages. The foreseeability of the consequences of a defendant’s actions is relevant only to the question of whether the defendant had and breached a legal duty to the plaintiff.

It has been so long settled in this jurisdiction that proximate cause relates only to cause-in-fact, with no foreseeability required, that extended discussion is unnecessary. Although relevant to the determination of duty and breach, foreseeability “is not a factor in determining proximate cause. A defendant who has breached a legal duty to a plaintiff is liable for all the injurious consequences that flow from the negligence until diverted by the intervention of some efficient cause that makes the injury its own, or until the force set in motion by the negligent act has so far spent itself as to be too small for the law’s notice.

In this case, rather than clearly instructing the jury that defendant was liable for all injurious consequences that flowed from her admitted breach of a duty to plaintiff, the trial court expressly directed the jury to consider the foreseeability of the type of injury plaintiff alleged as an element of proximate cause, even though duty and breach had been established as a matter of law by the court and the jury had been so instructed.

Defendant’s closing argument, in addition to directly refering to the instruction on foreseeability, reiterated the notion that “this kind of event doesn’t cause injury.” In light of the court’s instruction concerning foreseeability and defendant’s focus on that instruction in closing, the jury could easily have concluded that plaintiff was not entitled to recover for her ongoing injuries, even if they were caused by defendant’s actions, because the kind of injuries she suffered was not foreseeable. Thus, we find the instruction was prejudicial.

Older friend did not have duty to prevent / did not cause 15-year-old’s suicide.

Lenoci v. Leonard, 2011 VT 47 (mem.)

This case asks the Court to decide if an eighteen-year-old has a duty to control the behavior of a fifteen-year-old friend and, if the fifteen-year-old later commits suicide, whether the eighteen-year-old is at fault.  Plaintiff contends the trial court erred in finding Kayla did not owe Alex a duty. She suggests such a duty arose when Kayla, an eighteen year old, brought Alex, a minor, to a party with alcohol and adults present and recognized, or should have recognized, the "unreasonable risk of sexual assault" Alex faced. Plaintiff further argues that there was ample evidence supporting her theory that Kayla's negligence caused Alex's death and emotional distress and summary judgment was therefore premature. We affirm the trial court's grant of summary judgment to defendant and conclude she had no duty to intervene to prevent the tragedy that occurred. We additionally address the trial court's holding that Alex's suicide broke any causal connection to Kayla's actions.

Foreseeability of the risk is often a primary consideration on the issue of duty. We have recognized that "[a]ctionable negligence is made out only when it appears that a prudent person, in like circumstances, would have thought that injury would be likely to result" from the acts or omissions in question.To argue that Kayla could or should have anticipated Alex would suffer emotional distress as a result of the intercourse requires too much speculation and does not satisfy the need that the claimed injury be reasonably foreseeable.

Plaintiff essentially advocates that we find a duty simply because one girl was eighteen and the other was fifteen. The law does not impose such a duty in this situation—a duty for an eighteen-year-old to protect a high school friend who has not reached the age of majority from the consequences of the younger person's independent behavior.  There is no evidence that Kayla ever agreed to supervise and care for Alex or that the parents of Alex ever relinquished or sought to relinquish supervision of Alex to Kayla. As the trial court noted, "This was a case of two high school friends sneaking out together, unbeknown to either of their parents; not a situation where an adult agrees to care for another's child. Kayla did not become Alex's keeper simply because Kayla was 18 years old and Alex was not." We affirm the trial court's decision on this issue.

The trial court, however, noted that the wrongful death claim required further analysis because "a separate duty exists as to suicide." We address this issue to provide guidance to the trial bench in the future and to affirm the trial court's reasoning in this case.   

Generally speaking, voluntary suicide is viewed as an independent intervening act that breaks the causal chain and severs potential liability. However, the causal chain is not broken when an injured person becomes insane, even temporarily, and that insanity prevents one from realizing the nature of one's act or controlling one's conduct. Here, there was no evidence of an uncontrollable impulse on Alex's part to commit suicide.

A number of jurisdictions have recognized an additional exception to the general rule limiting liability in the event of a suicide, holding that liability exists because the defendant had a duty to prevent the suicide arising from the defendant's special relationship with the suicidal individual. This exception does not apply here. As we have found, the relationship between Alex and Kayla did not give rise to any "special relationship" that would impose a duty of care on Kayla.
There was substantial evidence that Alex had been expressing suicidal ideation for some time, long before she had sex at the apartment, and there was no evidence Kayla knew Alex was suicidal. Alex, for her own reasons, chose to end her life. Nothing Kayla did or did not do played a part in that decision.
Affirmed.

Torts. Epidemiological evidence insufficient to show specific causation.

Blanchard v. Goodyear Tire & Rubber Co., 2011 VT 85 (mem. )

Plaintiff Paul Blanchard appeals the superior court’s order granting summary judgment to defendants with respect to his toxic tort personal injury action.  We affirm.

Plaintiff cannot survive Goodyear’s motion for summary judgment on his toxic tort claim unless he is able to point to evidence suggesting a probability, rather than a mere possibility, that (1) he was exposed to the specified chemical at a level that could have caused his physical condition (general causation); and (2) the exposure to that chemical did in fact result in the condition (specific causation).

Plaintiff proffered evidence indicating that, as a teenager some thirty-five years earlier, he frequently played on a field adjoining the Goodyear plant.  A gully that ran across the field may have contained water contaminated by petroleum products containing benzene.  Benzene has been associated with non-Hodgkins lymphoma, a general category of cancer under which plaintiff’s subtype falls.  Plaintiff’s lymphoma was not caused by an immunodeficiency disorder, a known cause of that type of lymphoma.       

Assuming that we accept all of this evidence as true, it falls well short of what plaintiff would be required to show in order to prevail in a jury trial. As we recently explained in Estate of George v. Vermont League of Cities and Towns, epidemiological studies assess the existence and strength of associations between a suspected agent and a disease or condition and thus focus on general causation—whether the agent is capable of causing the disease—rather than specific causation—whether the agent actually caused the disease or condition in a particular individual. 2010 VT 1, ¶ 18.  Proof of an association between occupational exposure to benzene and non-Hodgen’s lymphomas is insufficient to support a jury finding of specific causation. The vast majority of cases concerning his type of lymphoma are of unknown origin. Therefore evidence excluding one known cause of plaintiff’s lymphoma does not permit a  jury to find more-probable-than-not specific causation. 


In the end, plaintiff’s suspicion that his cancer was caused by exposure to benzene on the Goodyear ballfield when he was a teenager is purely speculative.

Torts. Concerted action in hunting accident not proved. Knowledge, foreseeability, duty and causation all lacking.

Lussier, Administrator v. Bessette, Lussier and Reed (2010-056) (19-Nov-2010) 2010 VT 104 (Reiber, C.J. ) 

The trial court granted summary judgment in favor of defendants in this wrongful death action.  On appeal, plaintiff argues the trial court erred in holding that defendants were not subject to concerted action liability for their participation in a hunt which culminated in the death of Rejean Lussier.  We affirm.

While on a joint hunt with defendants, Mr. Viens shot Lussier in boredom or poor judgment when  he looked through his scope at a tractor and fired. The pertinent inquiry for the trial court was whether defendants were engaged in concerted activity with Mr. Viens when he shot Mr. Lussier. As adopted by this Court, the Restatement sets out three alternative tests:

A person is subject to liability for harm resulting to a third person from the tortious conduct of another if the person: (1) commits a tortious act as part of a common design with the other; (2) gives substantial assistance to the other knowing that the other’s conduct is a breach of duty; or (3) gives substantial assistance to the other to accomplish a tortious result while also acting in a manner that is a breach of duty to the third person.   

Montgomery v. Devoid, 2006 VT 127, ¶ 33, 181 Vt. 154, 915 A.2d 270 (citing Restatement (Second) of Torts § 876 (1979)) 

At least a minimal knowledge requirement must be met before liability can be imposed on a common design theory. Defendants had no knowledge, nor any reason to suspect, that Mr. Viens was engaging in flagrant hunting violations in breach of his duty to Mr. Lussier.  Because defendants did not know that Mr. Viens was engaged in conduct constituting a breach of his duty to Mr. Lussier, they cannot be found guilty of concerted action liability under the first and second prong. 

 As to the third prong, there was nothing in defendant’s hunting plan—walking through the woods to flush a deer—that would have Mr. Viens’s hunting violations as its natural and probable result.  Neither were defendants’ actions a breach of some separate duty owed to Mr. Lussier.  It is not the duty of those in a hunting party to supervise other members.  Because defendants breached no separate duty to Mr. Lussier and because their actions did not proximately cause his death, they are not liable under this final prong.

Finally, the Restatement cautions that a person who encourages another to commit a tortious act  is ordinarily not liable for  acts of the other done in connection with the intended tortious act that were not foreseeable by him.  Restatement (Second) of Torts § 876, cmt. d (1979). It is generally not foreseeable that another hunter in hunting party will violate hunting safety rules. See, e.g., Kramschuster v. Shawn E., 565 N.W.2d 581 (Wis. 1997). Even assuming defendants’ plan was negligent, it was not foreseeable that as part of this plan that Mr. Viens would engage in the hunting violations that proximately caused Mr. Lussier’s death. Defendants may have  created the risk that someone would be shot when Mr. Viens attempted to shoot a dear in accordance with the group’s hunting plan,  but Mr. Viens was not acting pursuant to the plan when he looked through his scope at the tractor in boredom or poor judgment. 

Because Mr. Lussier’s death was the natural and probable result of Mr. Viens’s conduct, but not of defendants’, defendants cannot be found liable.

Workers Compensation; evidence. Superior court has jurisdiction of appeal of summary judgment ruling even though it involves a question of law. Majority holds epidemiological causation evidence inadmissible under Daubert.

Estate of George v. Vermont League of Cities and Towns (2008-374)(14-Jan-2010) 2010 VT 1 (Skoglund, J.) (Dooley, J., concurring.) (Reiber, C.J., joined by Johnson, J., dissenting)
Claimant appeals from the superior court’s order granting summary judgment to insurer in this workers’ compensation case. He argues that the court: (1) exceeded its jurisdiction under 21 V.S.A. § 671 by granting summary judgment to insurer; and (2) abused its discretion by excluding the expert testimony that he offered. We affirm the trial court’s decision.

Commissioner certified to the superior court the following question for determination: was claimant’s NHL causally related to his work as a firefighter? Insurer moved for summary judgment arguing that the opinions of claimant’s experts should be excluded under Vermont Rule of Evidence 702 as irrelevant and scientifically unreliable, and that without any admissible evidence of causation, claimant was not entitled to workers’ compensation benefits. Claimant responded that the standard for the admissibility of expert testimony under Rule 702, delineated in Daubert does did not apply to workers’ compensation claims in superior court; that insurer had waived its right to challenge the admissibility of the evidence by failing to raise this argument before the Commissioner; and that the court lacked jurisdiction to grant a motion for summary judgment.

The fact that insurer was granted judgment as a matter of law in this case does not transform the certified question into one of pure law that must be decided only by this Court. The rules of evidence and procedure are applicable in workers’ compensation cases heard by the superior court. The court’s review of the Commissioner’s decision “involves a retrial de novo.” That means that insurer is not limited to the arguments raised below, and preservation—or lack thereof—is not at issue. The trial court was obligated to apply the rules of evidence and to determine if the expert testimony proffered by claimant was relevant and admissible. The Commissioner has no expertise in such matters, and no deference to the Commissioner’s approach is required.

Without evidence of specific causation, summary judgment was properly granted to insurer. Our law requires claimant to show, not merely that firefighting increased the likelihood of injury, but that it more likely than not caused his disease.  Claimant failed to establish good grounds for such a conclusion here. Claimant relied on epidemiological studies, studies that focus on general causation rather than specific causation.

The court did not abuse its discretion in finding that Dr. Guidotti’s opinion was not based on sufficient facts or data, and that Dr. Guidotti had not applied scientific principles and methods reliably to the facts of this case. Dr. Guidotti opined that, “within reasonable medical certainty and given the weight of evidence,” claimant’s NHL “arose from his work as a firefighter and was caused by exposures in the course of his occupation as a firefighter.” Dr. Guidotti acknowledged that the demonstration of “more likely than not” in the epidemiological literature corresponded to a relative risk, or an odds ratio, of 2.0, although he argued that this standard should not be followed here. Where six of eight epidemiological studies did not show a statistically significant risk, it was reasonable for the trial court to conclude that Dr. Guidotti’s expert opinion that claimant’s NHL was more likely than not caused by firefighting lacked a solid and reliable foundation. The trial court did not abuse its discretion in considering a relative risk greater than 2.0 as a reasonable and helpful benchmark under the circumstances presented here.

Justice Dooley writes separately to criticize the Court’s “unworkable and inconsistent distinctions” made in an attempt to resolve appellate jurisdiction in workers’ compensation cases.  The Commissioner’s ruling was the functional equivalent of granting judgment as a matter of law to insurer, and, just like the decision of the superior court, is one of law, not fact. Under Stoll, 2009 VT 61, ¶¶ 7-8, this case was appealed to the wrong court, and the appeal should be dismissed. The majority’s rationale for distinguishing Stoll puts “more mud in muddy water”. Justice Dooley says we should allow all cases like this to go to the superior court and not require that they go exclusively to this Court. Stoll v. Burlington Elec. Dep’t, 2009 VT 61, ¶ 11, ___ Vt. ___, 977 A.2d 1282 (Dooley, J., dissenting).

Chief Justice Reiber, joined by Justice Johnson concludes it was abuse of discretion to “exclude expert testimony that met the standards articulated in Daubert and adopted by this Court.” Regardless of whether the conclusions of claimant’s experts are ultimately persuasive—an issue that is not before us today—“[t]he trial court should have allowed the adversarial process to draw out any deficiencies in the expert testimony, rather than usurping the jury’s function.” Id.